Matter of Pena v Robles

Annotate this Case
[*1] Matter of Pena v Robles 2006 NY Slip Op 51020(U) [12 Misc 3d 1163(A)] Decided on May 19, 2006 Supreme Court, New York County Stone, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 19, 2006
Supreme Court, New York County

In the Matter of the Application of Dilsia Pena, Noreen Connell, Hazel N. Dukes Leonie Haimson and Randi Wiengarten, individually and on behalf of the approximately 71,135 signers of a Petition Filed Pursuant to Section 37 of the Municipal Home Rule Law, Petitioner, -and- COUNCILMAN ROBERT JACKSON and THE HISPANIC FEDERATION, Petitioners-Intervenors,

against

Victor Robles, as City Clerk of the City of New York and THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondents, JOEL KLEIN, Chancellor, New York City Department of Education, Respondent-Intervenor,



111177/05



Jerry Goldfeder

w: 212 962-4600

fax: 212 406-3545

Randy M. Mastro

w: 212 351-3825

fax: 212 351-5219

Alan Klinger

w: 212 806-5818

fax: 212 806-7818

Jon Pines

(today: 631 267-6749

or 917-370-3015

Lewis Bart Stone, J.

This proceeding was commenced by Order to Show Cause dated August 11, 2005, by Petitioner Dilsia Pena, on her own behalf, and on behalf of other signers (collectively the "Proponents") of a voter's petition (the "Petition") to amend the New York City Charter (the "Charter"), pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), to review a decision (the "Initial Ruling") of Respondent Victor Robles, the Clerk of the City of New York (the "City Clerk"), dated August 5, 2005, certifying to the New York City Council ("City Council") that the proposed [*2]amendment (the "Amendment") could not be submitted to voters of the City of New York (the "City") either at the 2005 or the 2006 general elections.

New York Municipal Home Rule Law ("MHRL §37") authorizes the voters of a city to amend the charter of their city through a petition process. Under MHRL §37(5), such petitions must be submitted to the clerk of such city who makes an initial determination whether there are sufficient valid signatures of eligible electors and whether the petition "complies or does not comply with all the requirements of law," and issues his certificate to the local legislative body setting forth such determination. Thereafter, if such legislative body fails to adopt the proposed amendment on its own by local law,[FN1] the proponents of such change may require the proposed change to be submitted to the voters of the city by collecting and filing sufficient additional signatures of qualified electors who did not sign the first petition. The Supreme Court is expressly given jurisdiction under such section to review a "finding by the City Clerk that a petition does not comply with all of the requirements of law." This procedure was followed by the Proponents and the City Clerk, and this proceeding was initially commenced to review the Initial Ruling in which the City Clerk certified his finding that the Petition did not comply with all requirements of law.

The Initial Ruling first certified that submission of the Amendment to the voters for the 2005 general election was barred because the New York City Charter Revision Commission (the "Charter Commission"), had filed a timely proposal to amend the Charter at the 2005 election, thus invoking the rule that where an amendment to the Charter had been submitted by the Commission for any general election, "no other question or questions shall be submitted to or invited upon...pursuant to any...petition." MHRL §36(4). Such portion of the City Clerk's finding has effectively been acquiesced to by the Proponents, and the Amendment was not submitted to the electorate at the 2005 general election.[FN2]

In his Initial Ruling, the City Clerk also noted that where a Charter Commission proposal to amend the Charter had displaced an amendment to the [*3]Charter proposed by voter petition for one general election, such proposal, could be placed on the next general election ballot, i.e. in 2006. MHRL §36(5)(g). The City Clerk, however, in his Initial Ruling, also rejected placing the Amendment on the 2006 general election ballot, citing four grounds set forth in an advisory opinion (the "Opinion") dated August 4, 2005, which he had requested from the New York City Corporation Counsel ("Corporation Counsel"). In his Initial Ruling, the City Clerk gave five reasons why the Amendment should not be placed on the 2006 ballot. The gist of these four grounds in the Opinion were:

- - the Amendment was impermissibly vague and misleading to the public.

- - the Amendment conflicts with and is preempted by New York Education Law.

- - the Amendment failed to include an adequate plan to provide money and revenues as required by MHRL §37(11)

- - the exercise would be an unauthorized "advisory referendum."

In addition, the Initial Ruling also determined that the Amendment related to "subject matter that is not a proper amendment to the Charter."

Subsequent to the commencement of this proceeding, the Proponents responded to the Initial Ruling by obtaining and submitting over 15,000 new signatures (the "Supplemental Petition") to force the Amendment to the ballot on the ground that the City Council had not adopted the Amendment by local law following its submission. On September 28, 2005, the City Clerk issued a new certification to the City Council finding that the Amendment should not be presented to the City voters either at the 2005 or 2006 election. This new certification "reaffirmed the earlier certification of the Office of the City Clerk that for the reasons stated therein, the Petition does not comply with the requirements of law" and indicated that he was also submitting the Supplemental Petition to respondent, Board of Elections, to determine whether it contained sufficient valid signatures of qualified voters.

On October 7, 2005, the Proponents filed an Amended Verified Petition which included allegations that there were sufficient signatures to the Supplemental Petition.

The Third through Sixth Causes of Action of the Amended Verified Petition relate to the sufficiency of these additional signatures. However, as the City Clerk subsequently has conceded that sufficient signatures were presented in the Supplemental Petition, his expression of concern on this ground has now been withdrawn. Accordingly, the Third, Fourth, Fifth and Sixth causes of action addressed to such issue must be and are hereby dismissed as moot. As a result, the Initial Ruling and September 28, 2005 certification of the City Clerk are now functionally identical. Accordingly, both will jointly hereafter be referred to in this Decision and Order as the "Ruling." [*4]

The Amended Verified Petition alleges three other causes of action. The First and Second [FN3] Causes of Action respectively claim

- - that the City Clerk erroneously and improperly delegated his statutory obligation to certify the original petition to the Corporation Counsel.

- - that the City Clerk "erroneously" determined that the Amendment was invalid for submission to the City voters.

The City Clerk responded by Cross Motion to dismiss the Amended Verified Petition for the failure of the remaining three Causes of Action to state a claim for relief. The City Clerk also sought to dismiss the Amended Verified Petition on the grounds that it had been insufficiently pleaded as a matter of law.

The parties, by stipulation, established an extended briefing schedule and submitted this proceeding to this Court on April 26, 2006, for decision, at which time the parties presented extensive oral argument on the Petition and Cross Motion.

As the subject matter of this proceeding has generated substantial public interest, several persons not named as parties to the Amended Verified Petition have sought and have been granted rights to intervene. Other interested groups have petitioned to submit briefs and statements amicus curiae. Recognizing the importance of this dispute and the desirability for this Court to have the benefit of any legal insight into the difficult issues presented, this Court authorized the intervention of Councilman Robert Jackson and the Hispanic Federation (the "Intervenors") who jointly moved to intervene, pursuant to CPLR §401, et. seq. and §1013. The Intervenors participated and coordinated their presentation with the Proponents at the oral argument, and submitted memoranda of law in support of the Proponents. At oral argument, the parties and the Court also approved the addition of Joel Klein, as Chancellor of the New York City Department of Education (the "Chancellor") as a party respondent. As Corporation Counsel is counsel for all respondents, such addition could easily be made without delaying any decision in this proceeding.

The parties also stipulated that The Citizens Union was authorized to submit a brief amicus curiae. Such stipulation is presumptuous as the acceptance of an amicus brief is solely at the discretion of the Court. However, this Court does not object to such brief and will accept and consider such amicus brief. At least one other organization has submitted written matter at or before the time of the oral argument.

While some material submitted by Intervenors and amicus and other relate to issues being considered by this Court under this proceeding, much of their [*5]submissions argue that Amendment is a good idea and therefore should be supported. Such argument is political and not before this Court and such arguments have been expressly ignored in considering the issues addressed in this Decision and Order. This Court has no power to determine policy questions as to how to allocate funds within permissible legal boundaries or whether it is or is not desirable to change the city budget process, or whether or not to decrease class size in the public schools. These issues may only be decided by competent governmental bodies under appropriate procedures as provided by law. This Court's sole function is to decide whether the Ruling must be set aside as a legal matter.

The oral argument clarified certain issues to be decided by this Court. The parties agreed that there are two principal issues before this Court, viz:

1. Was the Amendment in appropriate form to be submitted to the voters? and

2. Was as the subject matter of the Amendment an issue which could be submitted to the voters or was it superceded or preempted by state law?

Other issues, not necessarily conceded by the parties, which will be addressed at the end of this decision.

A. THE AMENDMENT

The Amendment proposes to amend Chapter 6, §103(a)(1) of the Charter to add a new subdivision (h) to read as follows:

(h) An amount, as certified by the comptroller, to be exclusively spent by the City School District of the City of New York to achieve a number of pupils per class in grades K through 12 that is comparable to the number of pupils per class in general and special education classes respectively in New York State exclusive of New York City, said amount having been allocated from the funds apportioned by the State of New York for the City School District of the City of New York for the purpose of providing the opportunity for a sound basic education pursuant to the final judgment in Campaign for Fiscal Equity v. State of New York, provided that said allocation is no less than twenty-five (25%) percent of said funds in any fiscal year. This subsection shall become effective at the beginning of the first fiscal year for which a city budget is prepared and adopted after the adoption of this amendment by the voters of the City of New York.

B. CAMPAIGN FOR FISCAL EQUITY SUIT

As can be seen by its text, the Amendment is an attempt by the Proponents to force the allocation of a portion of the pot of money expected by the Proponents to be forthcoming from the State for the City School District under the lawsuit known [*6]as Campaign for Fiscal Equity, Inc. v. State of New York, ("CFE"),100 NY2d 893 (2003), to the reduction of class sizes in public schools in the city.

In CFE, the Court of Appeals upheld a finding of the Supreme Court, New York County, that the State had not met its obligations to the City School District under New York State Constitution (the "Constitution"), Article XI, Section 1, to assure sufficient resources so that the children of the State may obtain a sound basic education. This Court of Appeals decision remitted CFE to the Supreme Court, New York County, to consider appropriate remedies consistent with the Court of Appeals ruling. On remission, the Supreme Court, New York County, determined that a specific amount had to be appropriated on a specific timetable to remedy the situation and ordered the State make such appropriation. The Appellate Division, First Department, set aside such determination and returned the case to the Supreme Court NYS2d , 2006 WL 724551, 2006 NY Slip Op. 02284 (1st Dept. March 23, 2006), finding the remedy proposed to raise difficult and basic questions of State governmental structure and the separation of power between State legislative, executive and judicial branches under the Constitution. An as-of-right appeal of this decision has been filed with the Court of Appeals. Although it would be a speculation for this Court to even venture a guess as to how the CFE litigation ends, as both the Court of Appeals and the First Department agree that there has been a Constitutional failure to provide adequate funding for the public schools of the City, it is reasonably foreseeable that the City School District will eventually have additional resources for education purposes, although from what source in what amount, when and with what strings attached remain to be determined.[FN4]

The scenario identified by the Amendment for the remedy of the Constitutional violation found by the Court of Appeals, a not necessarily unlikely scenario, contemplates a legislative apportionment of State monies to the City School District, expressly for the purpose of such remedy. However, the Proponents acknowledged and conceded at oral argument (and this Court concurs) that if the Amendment was properly to become a part of the Charter, it would only apply to funds so earmarked and would not apply monies received by the City School District not so earmarked. As the Charter cannot govern either the action of the New York State Legislature (the [*7]"Legislature") nor the Governor in the State budget process,[FN5] there is no assurance that whatever State budgetary action is eventually taken to meet the constitutional mandate found by the Court of Appeals in CFE, will be provided in conformity with such scenario and or that there will be any apportioned state funds which such Amendment language would affect.

This uncertainty of result is a basis of certain, but not all, of Respondents objections to the form of the Amendment.



C. CONFLICT WITH AND PREEMPTION BY STATE LAW

Under the Constitution, all sovereignty and power, not ceded to the United States under the United States Constitution, is reserved to the State, except as restricted by the Constitution or expressly delegated thereunder. Municipalities (including the City) are granted certain rights under the Constitution and the Legislature is enjoined from acting "in relation to the property, affairs or government of any local government" except under certain limited conditions. Constitution Art. IX, Sec. 2(b)(2). The State is also required to adopt a Statute of Local Governments, "granting to local governments powers, including but not limited to those of local legislation and administration in addition to the powers vested in them by" Article IX of the Constitution. However, Constitution Article IX, §3(a) expressly provides that "except as expressly provided, nothing in this article shall restrict or impair any power of the legislation in relation to maintenance support or administration of the public school system, as required or provided by" Article XI of the Constitution.

As noted above in the discussion of CFE [FN6] and as confirmed by the Court of Appeals in such case, education is a state responsibility and function under the Constitution. Thus, under such constitutional structure, the City has no power, by local law (or by Charter amendment which may be achieved either by local law or by petition and vote) to affect the State's power and obligation over educational matters, except to the extent such matters have been duly and properly delegated to the City. [*8]The Ruling was based on this principle.[FN7]

The Ruling relied on a long line of State court decisions applying this principle which have in the past denied the City and other municipalities from impinging on the State's powers and responsibilities over education by local law or charter amendment. The Proponents have addressed this line of decisional law by both conceding the point and the validity of prior case law, but instead contending that the Legislature, by enacting Chapter 91 of the Laws of 2002 (hereafter "Chapter 91))[FN8] for the first time, implicitly, duly and properly delegated to the City sufficient power and authority to enact by local law the mandate proposed in the Amendment by whichever way such local law could properly be adopted, including by an appropriate voter petition and referendum.

Thus the parties are in accord and this Court agrees that, under case law decided prior to the adoption of Chapter 91, State law precluded, preempted and would have prohibited the submission of the Amendment to the City voters. Accordingly, to address the Proponents' contention that Chapter 91 changed the prior rules, it becomes unnecessary to reconsider case law decided prior to the adoption of Chapter 91. As it is unnecessary to do so, this Decision and Order does not discuss such cases.[FN9]

The Proponents' assertion that Chapter 91 changed the rules which must be applied to this controversy includes two sub-assertions, - i.e., first, that the Legislature had the power to change such rules, and second that the Legislature had in fact changed the rules. The first sub-assertion whether the Legislature was authorized to shift the power and responsibility over the matters in question to the City is a question under the Constitution. The second sub-assertion, whether the Legislature did so in fact, is a question of statutory interpretation. As this Court finds that the Legislature did not, by Chapter 91, delegate to the City the power and authority to enact the Amendment, this Court need and does not address the first sub-assertion of Proponents' contention, as it is axiomatic that a court should avoid [*9]dealing with a constitutional question if it may make a dispositive determination on another appropriate ground.

The Proponents further conceded at oral argument that Chapter 91 contained no explicit language of delegation but contended instead that the delegation was implicit, considering the substance and scope of the changes to the Education Law made by Chapter 91. This Court concurs that Chapter 91 contains no such specific language of delegation.

"It is a cardinal principle of statutory interpretation that the intention to change a long-established ruled or principle is not to be imputed to the legislature in the absence of a clear manifestation." Delmar Box Co., Inc. v. Aetna Ins. Co., 309 NY 60 (1955). Accord, McKinney's Statues §153. Thus, to prevail, the Proponents must show a "clear manifestation" of a legislative intent to delegate the state's long-standing powers over education to the City, (at least to the extent necessary to authorize the adoption of the Amendment by city voters).

The Proponents assert that Chapter 91 so radically modified the governance of the City School District that it implicitly delegated all powers over education to the City and the City's mayor (the "Mayor"). They base this argument on various sections of Chapter 91 which, by amending the Education Law, effectively transferred a substantial portion of the powers and functions of the New York City Board of Education (the "City Board") to the Chancellor who, under Chapter 91, is now appointed by and serves at the pleasure of the Mayor. Before Chapter 91, the Chancellor was appointed for a term by the Board. Chapter 91 also substantially reduced the powers of the Community School Boards, and phased them out a year later. Finally, Chapter 91 increased the size of the City Board from seven to thirteen, adding the Chancellor and five additional appointees of the Mayor to the City Board. The Proponents argue that this shift of control effectively conveyed the education function in the City from the State to the City.

1. PRE CHAPTER 91 SCHOOL BOARD GOVERNANCE CHANGES

The premise of Proponents' argument is that the changes made by the Legislature in enacting Chapter 91 constituted such an unprecedented radical change to the structure and governance of the City School District, that the Legislature must therefore have intended to upend the traditional retention by the State of its powers over education matters in the City. Although Chapter 91 did shift certain aspects of educational governance in the City and made important and significant changes, such changes were not as radical and unusual as the Proponents imply, as illustrated by the history of prior State legislation.

The Legislature has from time to time acted to change the governance of city [*10]school districts in the State by giving or taking powers from mayors, transferring powers to and from Boards or increasing or decreasing the numbers of board members and changing their terms, as the Legislature found appropriate to meet then current local conditions. There seems to be no single paradigm for these governance structures.

As an example of this smorgasbord approach, immediately before Chapter 91 was adopted, school boards in the City and Yonkers were appointed while boards in Albany, Buffalo, Rochester and Syracuse were elected. Education Law §2553. While Chapter 91 shifted the control of the appointment of the entity running the schools in the City from a minority input from the Mayor (two out of seven board members) to a majority of the City Board (seven out of thirteen members) and the sole Mayoral appointment of the Chancellor, both before and after the adoption of Chapter 91, the Mayor of Yonkers had the full power to appoint all members of the Yonkers School Board. While for many years prior to Chapter 91, the Mayor and the Borough Presidents shared the power to appoint members of the City Board, before 1969, the Mayor appointed all members of the Board.[FN10] In 1969, the Legislature dismissed the existing City Board, and reconstituted the City Board setting its size at seven members, with five elected separately by the voters of each Borough and two appointed by the Mayor. Laws 1969, Chapter 330 (the "Decentralization Law"). Pending such election, the Legislature provided for five-person interim City Board with one member appointed by each Borough President. Decentralization Law §11. In 1970, the Legislature postponed such election for a year and continued the interim City Board, but allowed the two appointees of the Mayor to be added at that time. Laws 1970, Chapter 3. Following a successful constitutional challenge to the election of the City Board members by voters of boroughs of unequal population under on-man-one-vote principles, the State legislature dropped the election requirement but continued the seven person appointed format, a format which continued until the adoption of Chapter 91. Laws 1972, Chapter 29. Thus, while Chapter 91, by increasing the Mayor's power to appoint those who are to oversee the City School [*11]District enacted a significant change, it was hardly unprecedented, and did not even extend to the Mayor powers granted by the Legislature to City Mayors in the past.

The number of members of a school board or other governing body of a school district is fixed by Education Law §2553 which has set board size for Buffalo and Yonkers at nine members and for Rochester and Syracuse at seven. Such section also authorized board of three to nine for city school districts other than the six largest cities.

In 1971, the Legislature converted elections for the Rochester school board from partisan to non-partisan, and increased the size of such board from five to seven members. Laws 1972, Chapter 141.

In 1970, the Legislature removed the power of the mayor of Albany to appoint members of the Albany school board, reduced their terms from six to five years, and provided for their at large election. L. 1970, Chapter 462.

In 1973, the Legislature increased the size of the Buffalo school board from seven to nine and changed their selection from appointment by the Mayor, subject to the confirmation of the Buffalo city council, to election from the nine Buffalo counselmanic districts. Laws 1973, Chapter 189. In 1974, the Legislature changed the method of election of such members, requiring six members to be elected from equally populated districts, to be drawn by the Buffalo city council, and for the election of three members at large. Laws 1974, Chapter 242.

Thus, prior to Chapter 91, board sizes and the mode of their selection varied widely and legislative changes to both were a regular occurrence. Accordingly, Chapter 91 is not unprecedented to the extent it increased or decreased the size of the body or bodies running the City School District or their method of appointment. As there is past precedent for giving a mayor full control over all board appointments in the City, Buffalo, Albany and Yonkers in the past and in the present in Yonkers, merely changing the number of appointees of a mayor from a minority to a majority of the Board is hardly extraordinary.

While Chapter 91 significantly reduced the day to day powers of the City Board, such powers were shifted to the Chancellor, not the Mayor. While the Chancellor is a Mayoral appointee, in the past members of the boards of cities including the City have been mayoral appointees. Thus, mayoral appointments of persons who control a city school district is not without precedent.

Pursuant to the Decentralization Law, which created of the Community School Boards, the City Board has not held full day to day power over every aspect of the City School District since 1969. For example, the Decentralization Law transferred power over City elementary schools from the City Board to the Community School Boards. The powers vested in the Community School Boards and the City Board by [*12]the Decentralization Law have been since subject to legislative reallocation over the years. While the Legislature in Chapter 91 removed from the City Board much of its remaining day to day administrative powers over high schools and city wide programs, the Legislature left in place the City Board's power over educational policy and over certain other major matters which have been traditional areas for school board action in the State. Thus, a reallocation of powers from the City Board is also not unprecedented.

As school boards were not traditionally full time or day-to-day administrators of school districts, removing the City Board's day to day administrative powers, staff, cars and employees probably returns the City Board to the more traditional activities of the City Board in the past and its and perquisites closer to those of its counterparts outside of the City. While returning to prior functions and eliminating the "mission creep" of the City Board may be significant news and of major interest to members of the City Board and their supporters and constituents, it is also not unprecedented.

Two aspects of Chapter 91 have no direct precedent in State law provisions relating to a school board. They are the "single member" board concept, where the Chancellor, has been given powers usually reserved for a multi-membered board, and the at-will appointment of the Chancellor and the members of the City Board by their appointing authorities. While unprecedented in the context of school boards, changing multi-member boards to a single member has clear precedent elsewhere in State law relating to other State agencies.

For example, the Legislature, in Laws 1968, Chapter 958, replaced the nine member State Commission on Human Rights with a single Commissioner of Human Rights, vesting in such single Commissioner the powers and authority previously vested in the nine member commission. Similarly, in Laws 1971, Chapter 110, the Legislature shifted most of the powers and duties of the multi-member State Board of Social Welfare to the Commissioner of Social Services.

While service of the Chancellor at the Mayor's pleasure is a new aspect of Chapter 91, under both prior law and Chapter 91, the Chancellor must be given a contract with a maximum term. However, prior law never required a minimum term for a Chancellor, only a maximum one. Thus, even before Chapter 91, a Chancellor could have been hired under monthly renewable contracts, and thus be effectively an at-will employee. What Chapter 91 apparently recognized is a practical balance to allow the City to make a significant financial commitment to attract a suitable candidate while allowing earlier termination to allow the City School District to address other issues without facing a long disruption otherwise required where a dismissal for cause was the only method to remove a Chancellor. As prior Chancellor contracts had no minimum terms, even this change does not represent an enormous [*13]deviation from prior law relating to school districts.

While there is no precedent for at-will removal of school board members or other persons serving in these capacity, State law contains a number of precedents for at-will appointment for other State entities. As a general rule, General Municipal Law §856, relating to members of Industrial Development Agencies provides

"Except as otherwise provided by special act of the Legislature, an agency shall consist of not less than three nor more than seven members who shall be appointed by the governing body of each municipality and who shall serve at the pleasure of the appointing authority."

Some examples of other authorities where the appointing authority may remove members are the Cohoes Parking Authority, where the members serve at the pleasure of the Mayor of Cohoes [FN11] and the Greater Rochester Sports Authority which has three members, two of whom serve at the pleasure of the County Executive of Monroe County, and one of whom serves at the pleasure of the Mayor of Rochester.[FN12]

While service at the pleasure of the appointing official may be a hallmark of an executive agency, as the above examples show, the alternate is not so. Service of board members of a State entity at the pleasure of an appointing official does not make such entity by itself an executive agency.

Accordingly, every change to the governance of the City School District finds precedent, either in prior State legislation relating to school districts or in other legislation relating to independent State agencies. In solving the controversy presented by the various political forces for and against change in the management of the City School District, the Legislature drew from its lexicon of precedent to pull together a structure to enable it to be reasonably acceptable to its majorities, the Governor, the Mayor and constituency groups. Chapter 91 reflects this reality. As each aspect of change of Chapter 91 came from the Legislature's playbook of precedents, there was nothing unprecedented in its use of these precedents to lead to any conclusion that Chapter 91 implicitly intended to do more than what it did explicitly.

Thus, although Chapter 91 did make important practical changes, the Proponents' basic premise that Chapter 91 was such a unique event that had to carry with it a broader implied shifts of educational responsibility and power, is not borne out.

[*14]2. THE TEXT OF CHAPTER 91

While undoubtedly Chapter 91 substantially increased the effective power of the Mayor over education in the City, an analysis of the text of Chapter 91 also belies any conclusion that the Legislature had an implicit intention to surrender or delegate traditional State interests, powers and responsibilities over education in the City to the City. Section 34, the effective date section of Chapter 91, expressly provides for the expiry or sunset of most provisions of Chapter 91 and the revival and reinstatement on June 30, 2009, of all prior provisions of the Education Law relating to the City Board and Chancellor existing immediately prior to Chapter 91. The only permanent changes made by Chapter 91 relate to the New York City School Construction Authority (the "Construction Authority"). While such permanent changes also increase the Mayor's power over the Construction Authority, such changes are irrelevant as to the issues in this proceeding. Including such sunset provision is inconsistent with any intent of the Legislature to cede its traditional powers and prerogatives.

Section 24 of Chapter 91 provides a second indication that the Legislature did not implicitly intend to do more than make the changes which were explicit in Chapter 91. Section 24, established a Task Force on Community School District Reform, of twenty members, half appointed by the Temporary President of the Senate and half by the Speaker of the Assembly, to submit proposals to restructure to the Community School Boards to the Legislature and Governor preliminary by December 15, 2002, and finally by February 15, 2003. That such Task Force was appointed by the legislative leadership, without official representation or legal input of the Mayor or the City Council, to address the future or lack thereof of the Community School Boards so that the Legislature could take further action at their 2003 session contraindicates any intention of the Legislature to delegate by implication power and authority over educational matters in the City to the City. Section 24 instead reinforced the Legislature's traditional maintenance of its jurisdiction and control over the City School District and how it is to function. In 2003, the following year, the Legislature did address the structure and powers of the Community School Boards by Chapter 123 of the Laws of 2003, again contraindicating that it had any intent in Chapter 91 to relinquish the State's traditional maintenance of jurisdiction and control over the City School District.

3. POST CHAPTER 91 CASES

This Court has also reviewed State and Federal decisions which have directly or indirectly considered Chapter 91.

In Perez v. City, 9 Misc 3d 632 (Sup. Ct. Bx. County 2005), the impact of [*15]Chapter 91 was directly considered in a case involving tort liability, brought against the City. In its motion to dismiss or for summary judgment, the City asserted that Perez should have sued the City Board instead of the City. After reviewing the shift of City Board responsibilities to the Chancellor, the removal of the Board from day to day responsibilities and the method of appointment of the Chancellor, the Court found it appropriate for the plaintiff to sue the City directly. Although not discussed, this decision seems to reflect no more than a reiteration of traditional concepts of respondeat superior, finding the City, whose Mayor appointed the Chancellor, rather than the Board, to have a sufficient quantum of control and supervision over the employee-tort feasor to incur respondeat superior liability. Although the Court referred to the "wholesale transfer of power and responsibility" caused by Chapter 91, that Court also noted that under the MHRL, the Education Law would control any conflicting Charter provision.

In Culatta v. Dept. of City Planning, 5 Misc 3d 583 (Sup. Ct. Richmond C. 2004). Culatta, a developer, had sought a "school certificate certification" from the City Planning Commission, a necessary prerequisite under City Zoning Resolution provisions relating to the Special South Richmond Development District for the residential development Culatta sought to construct. Because such zoning provisions contemplated that the City Board would issue a report concerning the availability of school capacity within sixty days of the "application," Culatta had a problem as Chapter 91 had taken from the City Board any power to issue such a report. The Court resolved this problem by finding that under certain circumstances, the Planning Commission could self certify such capacity. The Court also recognized that Chapter 91 eliminated the local Community School Board with whom the City Board was required to consult in issuing its report. While recognizing that Chapter 91 played havoc with City Zoning resolution provisions which had not at that time been modified to address Chapter 91 changes, the case offers no insight into the question before this Court.[FN13] [*16]

In Ocasio v. City of New York, 11/1/2005, NYLJ 18, (col. 3) (Sup. Ct. Bronx Co. 2005), a tort case involving an accident on school property, the City sought to dismiss the action against it on the grounds the City Board, not the City was proper party defendant. The Court followed Torres, supra , and denied the City's motion to dismiss.

The City argued that Charter §521 provided that lawsuits in relation to school property had to be brought against the City Board. The Court found such provision was inconsistent with Chapter 91, and was therefore effectively repealed. The Court stated:

A City has no power to adopt a local law which is inconsistent with a state statute, or attempts to legislate in an area where the legislature has preempted local regulation by assuming full regulatory responsibility. (NY City Health & Hosps. Corp. V. Council of the City of New York, 303 AD2d 69, 752 NYS2d 665 [1st Dept. 2003]). A statute is deemed impliedly repealed by another statute if the two are in such conflict that it is impossible to give some effect to both, and this maxim is all the more relevant when statutes relate to the same subject matter, which must be read together and applied harmoniously and consistently. (Alweis v. Evans, 69 NY2d 199, 505 NE2d 605, 13 NYS2d 95 [1997]). The former provisions requiring that the action be brought against the Board, which no longer controls day-to-day school operations, is clearly contrary to the revised system of school authority in the City of New York, which was established by the Legislature as part of a consistent plan, and must be deemed to have repealed that part of the charter which are directly inconsistent with that plan."

This language supports the City's position here that notwithstanding Chapter 91, State law continues to control the affairs of the City School District. Although Ocasio did not so state, its clear implication is that no Charter provision or Amendment could properly supplant State power in such area.

In Gonzales v. Esparza, 2003 WL 21834970 (not reported in F. Supp.) (Dist.

Ct. SDNY 2003, Kram, J.) The plaintiff, a former student, sued Esparza, a teacher in the City School District, with whom he had a sexual relationship, as well as the principal of the school, the Superintendent of Manhattan High Schools, the Chancellor, the City Board and the City. On the motion of the City, Judge Kram dismissed the City as party defendant, finding that under the Education Law, the City School District and not the City was the party responsible for the actions of school employees. In addressing the impact of Chapter 91, Judge Kram stated: [*17]

"Although plaintiff argues that recent changes in the structure of the Board and the control by the mayor's office over the position of Chancellor have blurred the division between the two entities, the Board continues for all purposes, [to] to be the government or public employer of all persons appointed or assigned by the city board or the community districts[.]' NY Educ. Law §2590-g(2) (McKinney 2003). The Court agrees with the Corporation Counsel for the City that changes in the statutory scheme regarding the interplay between the Board and City can be best described as political,' with the Board continuing to exist as a separate and distinct legal entity from the City. As a result, the City cannot be held liable for the alleged torts committed by the Board, and plaintiff's claims against the City are dismissed."

Judge Kram also dismissed all of Gonzalez' claims on the merits.

In Marrero v. City, 12 Civ. 6634, 2004 WL 444548 (not reported in F. Supp) (Dist. Ct. SDNY 2004, Cole, J.), Marrero, an employee of the City School District who was fired, sued in State court alleging discrimination by reason of national origin in violation of State law and Title 42, USC §1983 ("Section 1983"). As defendants, he named the City, the City Board, and his supervisor, John Sullivan. The case was removed to the Federal District Court for the Southern District of New York, where the defendants moved for summary judgment. The Court dismissed the suit against the City finding that under State law, the City Board was the only person which could be sued with respect to employees of the City School District.

Although the Marrero Court does not mention Chapter 91, it cites as authority Gonzalez, supra , which does, indicating that in that Court's view, Chapter 91 had not changed the basic dichotomy between the City and the City School District for the purpose of suits by persons allegedly aggrieved by the City School District or its employees. The Court explicitly recognized the basis of lawsuits against the City Board to be on a theory of respondeat superior, and expressly dismissed against the City Board on the grounds that actions under Section 1983 could not be maintained on the theory of respondeat superior.

In Matter of P.I. v. City Board of Education, 10 Misc 3d 1073(A), 2006 NY Slip Op. 50501(U) (Sup. Ct. NY Co. 2006), the Supreme Court, New York County also considered the proper party to be sued in an action for damages arising out of an alleged sexual assault on a student of the City School District by another student on school premises. Also at issue was whether a late filing by the plaintiff was excusable. While the Court discussed Chapter 91, and the Perez, Gonzalez and Marrero cases, it ruled only on the application to serve a late notice of claim. The Court declined to make a definitive determination at that time on the City's motion [*18]to dismiss the suit as against it as "patently meritless" "in view of the ambiguity engendered by the recent amendments of the Education Law" (i.e. Chapter 91) and "in view of the developing state of law on the powers of the City's Chancellor and the Board of Education."

While these five cases do not expressly deal with the Proponents' assertions, they are not helpful to their cause. At best, half of the cases find a respondeat superior liability link to enable suit against the City, and half do not. On the other hand, other language or implications on all of the cases continue to recognize the continuance of State powers over the City School District.

4. POST CHAPTER 91 LEGISLATIVE BEHAVIOR

Often, intent can be ascertained by the behavior of the person or persons to whom such intent is ascribed. Here, using such method to determine if the Legislature intended to cede additional powers by implication leads to the conclusion that in adopting Chapter 91, the Legislature had no intent to do so.

While the Court of Appeals in Delmar Box Co., Inc., supra , cautions that relying on statements subsequent to the passage of legislation should be avoided in determining what was intended by a statute adopted by the Legislature, subsequent legislative actions may be helpful in determining what the Legislature intended in an earlier act, especially where the issue is one of implicit rather than an explicit meaning of the text. Here, one subsequent legislative action of relevance was taken when the Legislature adopted Laws 2003, Chapter 123, which addressed and substantially modified the functions and powers of the Community School Boards to implement recommendations of the Task Force appointed under Chapter 91, Section 24, without a Home Rule Message. Under the Constitution, any law affecting the property, affairs or government of a local government, other than by general law, may only be enacted by the Legislature "on the request of two thirds of the total membership or on request of its chief executive officer concurred in by a majority of such membership." Constitution Art. IX, §2(b)(2)(a). This request is known in legislative parlance as a "Home Rule Message." The sole exception to this rule permits the Legislature to act on such matters in the case of the City in the absence of a Home Rule Message, on "a certificate of necessity from the governor reciting facts which in his judgment constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two thirds of the members elected to [*19]each house of the Legislature."[FN14] Constitution Art. IX, §2(b)(2)(b).

Here, Chapter 91, by expressly referring to the City School District by name, was not a general law so as to avoid the need for a Home Rule Message (or in the alternative a message of necessity from the governor and passage by a two thirds vote of each house), to the extent it involved the property, affairs or government of the City. In fact, Chapter 91 was passed by a majority vote without a Home Rule Message from the City.[FN15]

Thus, the Legislature did not believe when passing either Chapter 91, Chapter 123, or Laws 2003, that it would involve the property, affairs or government of the City providing further evidence that they did not intend by the adoption of Chapter 91 to implicitly delegate State power over education to the City so as to authorize the Amendment to be submitted to the City voters.

5. LEGISLATIVE HISTORY

Legislative history is an appropriate source to aid a Court in determining the intent of the Legislature in its adoption of a statute. Tai Tran v. New Rochelle Med. Center, 99 NY2d 383 (2003).

To support their case for implicit delegation the Proponents have proffered material from various sources in two categories, pre-passage and post-passage of Chapter 91. Under Delmar Box. Co., Inc., supra , the Court may not consider post passage statements as legislative history to determine legislative intent, as legislative history, by definition, means the material before the Legislature at the time it was considering the measure in question. Pre-passage memorandum submitted to all the legislators, either through sponsors, proponents or opponents or legislative debate are, however, a legitimate part of legislative history. Here, a complicating factor exists as to which material is relevant to such history as the form of legislation which became Chapter 91 was in flux until he last minute.[FN16] Thus, in some cases, it may be [*20]difficult to ascertain which pre-passage material (other than the actual debates) related to the eventual text of Chapter 91 or to earlier draft proposals. Of Proponents exhibits, only five pre-dated Chapter 91,[FN17] and of these, only three (Klinger Affirmation Exhibits C, E and F) were clearly before the Legislature prior to the passage of Chapter 91, viz: Exhibit C, an extract from in the New York State Senate debate on Chapter 91 held on June 11, 2002, showing the remarks of Senator Velella, the Senate sponsor and Senator Montgomery, an opponent of Chapter 91, Exhibit E the memorandum of Senator Velella, and Exhibit F, an extract from the New York State Assembly debate on Chapter 91 held on June 10, 2002.

The other two of Proponents' Exhibits which pre-dated Chapter 91 are public statements of the Mayor viz: the Mayor's Inaugural Address of January 1, 2002 (Klinger Affirmation, Exhibit B) and the statement of June 10, 2002 entitled "School Reform: Putting Our Kids First," (Klinger Affirmation Exhibit N.). As the record is silent as to whether these two statements were submitted to the Legislature prior to their vote on Chapter 91, this Court may not rely on them to show legislative intent.

The Intervenors' exhibits consisted mainly of post-adoption material and material which related to the merits of the class size issue rather than the meaning of Chapter 91. These are not relevant to legislative history. While four of these exhibits, (Exhibits 12, 14, 15 and 28) expressly predate legislative action on Chapter 91, two of them (Exhibits 12 and 14) are New York Times news articles published June 7, 2004 and April 6, 2002 respectively, and one (Exhibit 28) is the Mayor's statement of June 10, 2002, which was also submitted by the Proponents as Exhibit G, the record is silent as to whether they were submitted to the Legislature prior to their vote on Chapter 91. Thus this Court may not consider such four exhibits to ascertain legislative intent. Senator Montgomery's remarks in the legislative debate in the State Senate on June 4, 2004, which were also part of Exhibit C, however, is clearly an item of legislature history. Exhibit 13, the undated (but probably contemporaneous) memorandum of the State Division of the Budget was addressed to the Governor recommending that he approve Chapter 91. While such language shows that Exhibit 13 was probably before the Governor before he approved Chapter 91, it does not imply or show by its terms, nor does the record otherwise show, that such document was before the Legislature before it voted on Chapter 91. The Court may not, therefore consider such Exhibit as legislative history.

An important piece of legislative history not referred to by either party is the [*21]Memorandum of the Assembly Rules Committee [FN18] ("Rules Committee Memorandum") submitted to the Legislature in connection with the introduction by such Committee of Assembly Bill 11527, the bill which became Chapter 91. This memorandum stated:

"The purpose of this bill is to alter the New York City school governance structure to provide for greater mayoral control; to require that the board of education retain its role regarding education policy issues and standards, including approval of any contracts that would significantly impact the provision of educational services, the budget, and capital plan; create a process to encourage real parental and community involvement; and require a strong maintenance of effort by the City.

The bill establishes a balance of authority, retaining a meaningful role for the city board. The city board would continue to maintain jurisdiction over city-wide educational policy issues, including the approval of all contracts that would significantly impact the provision of educational services."

The Rules Committee Memorandum reinforces the conclusion that although the Legislature was making important and significant changes, at least the Assembly believed Chapter 91 was shifting responsibilities within the school governance structure of the City, rather than creating of a new paradigm of the State-City relationships over education responsibility. While Exhibit E, the memorandum of Senator Velella, the Senate sponsor of Legislation which became Chapter 91, envisioned a greater change and greater powers for the Mayor over the City School District, such memorandum addressed the original Senate bill which was changed and pared back during the legislative process. See Remarks of Senator Velella, Exhibit C.

A review of the debate remarks of Assemblyman Sanders', chair of the Assembly Education Committee (Exhibit F), evince a position fully consistent with the Rules Committee Memorandum; Senator Montgomery, on the other hand (Exhibit C and Exhibit 15) objected to allowing the Mayor to appoint the majority of the seats of the City Board, thus shifting control to him. While a portion of Senator Montgomery's remarks, that the Mayor had been "given absolute authority for every possible decision," may be considered supportive of the Proponents' position, the remainder of these remarks undercut such support as she also stated that she based her conclusion on two changes, the addition of additional mayoral appointments to the [*22]City Board to give him a majority of appointees and to the shift of powers from the City Board to the Chancellor. As giving the Mayor the power to select a majority of the City Board to which she objected did not go as far as the law prior to the Decentralization Law, her remarks are not relevant to show such change to be legislative intent to cede all State power to the City.

Thus, the legislative history provides no basis to support the Proponents' argument that the Legislature intended by implication, to change long standing educational policies.

6. CONCLUSION

After reviewing the foregoing, relating to the Proponents' implied premises, the text of Chapter 91, its legislative history, subsequent actions of the Legislature and the cases construing Chapter 91, this Court finds that the Proponents have failed to establish their heavy burden under the test of Delmar Box Co., Inc., supra , to establish that the Legislature in adopting Chapter 91 had implicitly so changed the long standing policy of State control of education matters as to authorize the submission of the Amendment to the voters of the City. What is more, this Court also affirmatively finds on the basis of the foregoing that Chapter 91 did not so change the rules to authorize such submission. Accordingly, the Proponents' Second Cause of Action is dismissed for the failure to state a claim upon which relief may be granted.

D. OBJECTIONS TO FORM

In this proceeding the City Clerk raised numerous issues relating to the form of the Amendment and to the form of the Amended Verified Complaint (collectively, the "Form Issues"). These Form Issues include but are not limited to whether the wording of the Amendment was misleading or vague in its interrelation to other Charter provisions especially those relating to the City's annual fiscal plan, the practical effect of the Amendment and the fact that aspects of the CFE suit had not been finally resolved as well as objections relating to the form or sufficiency of pleadings. Some of these Form Issues were set forth in the Ruling and additional ones were added in the submission of the City Clerk. The Proponents have submitted arguments addressed to these Form Issues.

Because this Court has determined that the Amendment cannot be submitted to the voters of the City because of its content (however perfectly or imperfectly expressed or drafted), it is unnecessary for this Court to address these Form Issues. As the Decision and Order of this Court is to dismiss the petition based on content of the Amendment, to address the Form Issues would be equivalent to the issuance of an advisory opinion on them as well as delay the issuance of this Decision and Order [*23]as the Court grappled with the Form Issues, some of which are matters of first impression. As this proceeding involves a ballot question which the Proponents seek to place before the City voters at the 2006 general election, it is also important that this Decision and Order be issued promptly to afford the Proponents sufficient time, should they wish to appeal this Decision and Order to the First Department (or further) in a timely fashion to meet the election calendar for 2006. Accordingly, this Court makes no decision on the merits of any of the Form Issues.

E. THE CORPORATION COUNSEL'S OPINION

The Proponents's First Cause of Action alleges that the City Clerk erroneously and improperly delegated his statutory obligation to certify the original petition to the Corporation Counsel. This assertion totters between risible and frivolous.

The Corporation Counsel is the statutory attorney for the City and its agencies, one of which is the City Clerk. Charter §§48, 394(a). To assert therefore that a City Clerk who is not required to be a lawyer, should not have sought advice from Corporation Counsel on such a sensitive and complex issues as the proposed Amendment is absurd. To suggest that the City Clerk, who is not required to be a lawyer should not have followed the advice of his lawyer absent it being patently erroneous to him, is doubly absurd.

Little business is transacted and few decisions are made by City officials, especially in questions so essential to the governance of the City and the division of powers between the City and the State without the heavy participation of and reliance on the Corporation Counsel. While the Corporation Counsel may not necessarily always be correct, the proper response for an aggrieved party is to seek a review of Corporation Counsel's advice, as the Proponents have otherwise done by their commencement of this proceeding and the assertion of their Second Cause of Action. Suggesting that the City Clerk is required to "wing it" when confronted with a petition to be submitted to the voters is the triple height of absurdity.

Proponents' First Cause of Action is dismissed for the failure of such Cause of Action to state a claim on which relief may be granted.

F. PROPONENTS' THIRD CAUSE OF ACTION

The Proponents' Third Cause of Action seeks specific remedies which they assert are available assuming that they prevail on the merits of their other causes of action. As this Court has found that all of Proponents' causes of action are either dismissible as moot or fail to state claims and therefore they cannot be sustained, this Court also hereby dismisses Proponents' Third Cause of Action for the failure to state [*24]a claim upon which relief may be granted.

G. CONCLUSIONS

Proponents' petition is dismissed. The City Clerk's cross motion to dismiss the Amended Verified Complaint is granted. This the Decision and Order of the Court.

DATED:MAY 19, 2006

NEW YORK, NEW YORK

Hon. Lewis Bart Stone

Justice of the Supreme Court Footnotes

Footnote 1: The procedure is somewhat different for those charter changes subject to the mandatory referendum provisions of the MHRL. As the Amendment is not subject to such mandatory referendum provisions, such alternate procedure is not relevant to this proceeding.

Footnote 2: Note that Randy Weingarten, one of the petitioners in this proceeding had in 2003 attempted to place a referendum on the 2003 general election ballot to establish a Charter Commission to examine City Charter provisions relating to public school class size. In Weingarten v. Robles, 309 AD2d 614 (1st Dept. 2003) the First Department held that because a Charter Commission proposal had been submitted for the 2003 election, Weingarten's petition for such referendum could not be submitted to the City voters at that time.

Footnote 3: Petitioners' Seventh Cause of Action seeks a permanent unconditional injunction to place the Amendment on the 2006 ballot. This cause of action essentially addresses remedies, rather than the merits of the dispute.

Footnote 4: As the operable decision of the Court of Appeals is "to provide for," such could be done, in whole or in part, for example, by imposing an unfunded mandate on the City, out of Federal funds, perhaps even accompanied by a shifting of other municipal mandates, such as Medicare, to the State.

Footnote 5: The First Department in its 2006 ruling in CFE has now held that the Courts may not do so.

Footnote 6: Ironies abound. The CFE litigation was premised on education being a matter of specific state concern and therefore state responsibility. Yet, the Amendment would regulate by the Charter of a municipality the allocation of funds expressly made available to the municipality by reason of this State interest.

Footnote 7: For an extensive discussion of this principle in the context of the City School Board, see Lanza v. Wagner, 11 NY2d 317 (1962).

Footnote 8: Laws 2002, Chapter 91, was adopted by the Legislature on June 12, 2002 and was signed into law by the Governor on June 14, 2002, with an effective date of July 1, 2002. The bill which became Chapter 91 was introduced as Assembly Introduction 11627 by the Assembly Committee on Rules on June 10, 2002.

Footnote 9: Applicable cases subsequent to such date will be discussed below.

Footnote 10: Albeit from 1962 to 1969, Mayors had to select from choices submitted by nominating committees. The number of nominees from which the Mayor was required to select was also changed during such period. See Laws 1968, Chapter 568 and Laws 1969, Chapter 330. However, if the nominating committee failed to produce nominees within a short period, the Mayor could appoint members of his choice. This nominating committee format was imposed by Laws 1962, Chapter 971, by which chapter the legislature also dismissed the then existing City Board and created a new City Board of nine members to be so appointed. Prior to 1962, City Board members were appointed by the Mayor, in his sole discretion.

Footnote 11: Public Authorities Law §1493-C.

Footnote 12: Pub. Authorities Law §2578(1).

Footnote 13: The Court did say "While this South Richmond zoning regulation has remained unchanged, Chapter 91 of the Laws of 2002 and Chapter 123 of the Laws of 2003 have rocked the governance of New York City schools at its foundation. The radical change wrought by the Legislature shifted management responsibilities for the schools from the Board of Education to a municipal Department of Education headed by a chancellor directly appointed by the Mayor of the City of New York. The governance change, however, did not eliminate the Board of Education of the City of New York referred to in the Zoning Resolution. Its existence was specifically continued by Education Law §2590-b(1)(a)." However, the Court recognized that the Legislature could amend the Education Law, to return the power to the Board to issue the certificates, thus "implicitly" recognizing the retention of State powers over education in the City.

Footnote 14: This "message of necessity" is to be distinguished from usual "message of necessity" of the governor required to permit legislative action on a measure which has not been printed and on the desks of the members of the legislature for three calendar legislative days. Constitution Art. III, §14.

Footnote 15: Chapter 91 was, however, passed on a message of necessity from the governor to address the problem of insufficient aging of the printed bill under Constitution Art. III, §14.

Footnote 16: As indicated by the fact that the Senate Bill number for which the Assembly Bill was substituted was 7456-B, indicating that the Senate Bill had been amended twice since introduction, and by the need for a message of necessity in order to act on the final form bill which became Chapter 91, indicating that it did had reached its final form date of its passage.

Footnote 17: The other 20 exhibits are post-passage material which may be considered under Delmar Box.

Footnote 18: New York State Legislative Annual - 2002, p. 59.